23 MARCH 1918, Page 4


THE SANCTITY OF INTERNATIONAL CONTRACTS. THE debate in the House of Lords on a League of Nations, though it was deeply interesting, as such a debate could not fail to be, did not, in our opinion, set the feet of the nation on the path that leads to the promised land. It is good and right for a nation to have a vision before it, for we all know that without the vision a nation perishes. But those who most ardently advocated the creation of a League of Nations assumed far too much of human nature. Their arguments necessarily took it for granted that somehow or other—in a manner that was not, and could not be, explained—good faith would in future tend to take the place of bad • faith, that intrigue would cease to have its fatal attractions for human beings, and that problems which have long been known to be supremely difficult would become simple and direct. Nothing would please us better than to share these assumptions, but unhappily history forbids us to do so. It would be tedious to repeat the examination we have made more than once of the workings of the Holy Alliance, that great League to Enforce Peace upon the world, which came into being at the end of the French Wars. Enough to say that Alexander I. of Russia in his fascinating idealism equipped his scheme with all the phrases about brotherhood, justice, religion, and duty towards God and man that might have been expected to appeal to the best that is in humanity. In the event, as every reader of history knows, the League which was to save the world from the horrors of war, and from the exercise of tyranny by the strong over the weak, became one of the most hideous instru- ments of cynicism and oppression the world has ever known. Had it not been for the steadiness and wisdom of Castlereagh, the help of Canning, the loyal common-sense of Wellington, and the correct feelings of the Whigs, liberalism would have been banished from the face of Europe. Great Britain, with the co-operation of the United States, saved the world. The lesson is that intentions, no matter how good in them- selves, will not achieve their purpose if the task set be far too difficult.

It may be objected that the world is in a very different condition from that of the years which followed the Napoleonic Wars ; that the sense of justice has grown in all nations ; that enlightenment has come to dark places ; and that, partly owing to moral causes and partly to physical causes helped by the advance of science, the social structure of the civilized world is a much more compact and serviceable thing than it was a hundred years ago. It may be asked, in short, why one failure should be made the excuse for not trying again. If that question represented all the arguments against the creation of a highly complicated League of Nations, we should admit that it was unanswerable. But the fact remains that it is always wiser to follow a straight path than a winding and intricate one, always wiser to adopt a simple policy rather than a very elaborate one. It is not, we ask our readers to believe, because we are indifferent to peace or insensible to the absolutely appalling horrors of modern war, that we regard with mistrust the complicated machinery for a League of Nations which is being commonly discussed now. We will meet question by question. Why not try something simpler, something more demonstrably likely to lead to the result which we all desire ? We believe that a simple means may be found in an agreement among the nations to exalt into a creed and a working system the idea of the sanctity of inter- national contracts.

Let us contrast the complications of the scheme that failed and the . comparative simplicity of this other. The Holy Alliance, in spite of the wicked intrigue and tyranny in which it resulted, was not so stupidly framed as merely to insist upon the maintenance of the status quo. The framers of the Alliance of course perceived that to insist upon that would be to deny to all nations the rights of change and progress. The Alliance, therefore, met at fixed intervals for the purpose of reviewing such measures as " shall be judged most salutary for the peace and prosperity of the nations and for the main- tenance of the peace of Europe." With this excellent purpose in view, the first reviewing Conference was held at Aix-la- Chapelle. The people of Monaco produced a list of grievances against their Prince. Bavaria and the Hochberg Princes laid before the Conference a quarrel about the succession in Baden. The grievances of the Jews in Austria and Prussia were submitted. The situation between the revolting colonies of Spain and the sovereign power at Madrid was discussed, and the Conference confessed itself quite flummoxed. The King of Sweden was put in his place, protesting, with the sympathy of some and to the annoyance of others, that he was being bullied by the great and the powerful. These are only examples. Picture that League of Nations—for such the Holy Alliance was—being asked to adjudicate as to whether all such grievances were real or pretended, and whether any State which was alleged to be an oppressor should be compelled to remove grievances at the risk of a general conflagration I No wonder that the Alliance usually took the course of sitting on the chests of those who were least able to resist and make a fuss. The result was, as it always must be in such circumstances, peace of a kind—peace by means of international slavery. Whenever the majority could not agree upon anything, they seized the opportunity to express their common hatred of the naval power of Great Britain, and in order to show how sincere that hatred was, they stood in the way of the suppression of the slave trade, to the abolition of which British naval power was dedicated. Suppose now that our future League of Nations, instead of accepting such fantastically onerous tasks as these, confined itself to the simple and straightforward business of saying that it would visit with the utmost penalties the violation of treaties— that and nothing more. We do not, of course, affirm that it would be invariably easy to say whether a treaty was or was not being infringed, but at all events the thing would be as clear as daylight compared with such tasks as the Holy Alliance undertook, and such as are contemplated for the kind of super-Imperial Federal Power now being adumbrated. Let it be ordained that no treaty could be broken without a year's notice. Let it be further ordained that if any treaty were broken without this notice, the offending State would be visited with all the penalties of economic boycott and non- intercourse which were within the power of the other members of the League to inflict. We venture to say that if this comparatively simple policy were adopted, there would be very few wars indeed. Consider, for example, the origins of the present war. Germany without a moment's notice threw her troops into Belgium. But imagine what would have happened if she had been compelled to give notice that she intended to denounce the treaty which guaranteed the integrity of Belgium. All the civilized world would have exclaimed that this was not a case of denouncing a treaty for honest reasons. There would have been time for decent nations to get together and take counsel as to what they should do to prevent so criminal an action. It would have become clear, for one thing, that Great Britain would use all her resources to prove her detestation of the German policy. In the circumstances in which this war began, Germany did not even know that. In fine, no nation that had to pass through a year of cool reflection would be very likely to go to war. The Hague Tribunal would be the proper body to decide whether or not a particular line of action violated a treaty. All the machinery of arbitration would be available, and genuine doubts and obscurities could be settled in this way. But if any nation persisted in violating a treaty within the period of a year, all the other members of the League would treat that nation as an outlaw. Till it had been brought to a better state of mind, they would not trade with it, they would not communicate with it, they would not pass on its mails. They would send it to Coventry till such time as it repented and acknowledged that it did not pay to defy the public law. Now we arc greatly encouraged in our advocacy of this idea of insisting on the sanctity of international contracts as a means of keeping the peace of the world by the belief that the idea is implicit in sonic of the ablest statements of President Wilson. We say " belief " because we have no right actually to assert that he has expressed the opinion that insistence on the sanctity of contracts is the true way of peace. But we cer- tainly have noticed so many phrases in his speeches which seem to us to mean that his mind is moving along this line, that we are encouraged to follow it up. Indeed, if it were nr,t for the fact that we find _this idea in President Wilson's thoughts, we should not write this article with such good hopes as we now feel. Of course we may be misinterpreting President Wilson, but here the facts of the American Con- stitution and the whole history of American thought about the sanctity of contract come to our support. One of the clauses of the American Constitution explicitly withholds from States of the Union any power to impair the validity of contracts. That was a guiding principle of the Americans who made the Republic. They felt that nothing was more sacred than the bond of men of business, and that there was no power fit to overrule a contract. This was the sense of Judge Marshall's famous decision in the Dartmouth College case. He held that a State could not repeal a charter of a private corporation. because a charter is a contract. Jurists to-day may point out that Marshall did not make clear what the nature of the con- tract was, whether it was with a corporation created by the charter, or with the trustees of the corporation, or with the subscribers to the College. But we need not go into the legal strength or weakness of Marshall's decision. The point is that in his judgment he was expressing the unwavering historical American view of the absolute sanctity of contract. Jefferson might be quoted indefinitely to the same effect. Take as an example the following splendid words :— " The moral duties which exist between individual and individual in a state of nature, accompany them into a state of society, and tho aggregate of the duties of all the individuals composing the society constitutes the duties of that society towards any other ; so that between society and society the same moral duties exist as did between the individuals composing them, while in an unassociated state, and their Maker not having released them from those duties on their forming themselves into a nation."

Surely we cannot be mistaken in saying that President Wilson was not unmindful of this long-established and magnificent body of thought when in his speech at the banquet of the League to Enforce Peace on May 28th, 1916, he spoke of " a universal association of nations to prevent any war from being begun either contrary to treaty covenants or without warning and a full submission of the cause to the opinion of the world." These words of President Wilson contain the kernel of the matter.

Those who are constructing airy images of a League with extremely intricate functions may seriously believe that nations which are enjoying peace, and thriving upon it, will run all the risks of war—and what war !—in order to make some tiresome offending country acknowledge that it is acting wrongly, or to prove that one nation is trying to stir up rebellion in another nation, or to prove that some nation is endeavouring to poach a few miles of ter- ritory on the other side of a very shadowy frontier-line. Frankly, we cannot believe that nations will act with such splendidly un-human correctness. They are far more likely to run the risk of war in order to serve their own ends. Even if arbitration should be forced on the disputants, it would not be certain that all the other nations would agree to unsheathe their swords in order to compel the acceptance of the verdict. It would be infinitely more simple if only one essential point were agreed upon—namely, that treaties between nations, so long as they exist, must be respected. The boycott would be war of a kind, but it would be war shorn of its worst horrors.